“Executive Orders To Undo Executive Orders”: Does Rand Paul Want To Repeal All Executive Orders? Depends When You Ask
Does Senator Rand Paul (R-KY) want to repeal the Emancipation Proclamation? It depends on when you ask him.
Senator Paul raised the subject during a Thursday night appearance in Manchester, New Hampshire. During a question-and-answer session with Republican activists, a young man reportedly asked Paul, “If you were to receive the presidency, would you repeal previous executive orders and actually restrain the power of the presidency?”
“I think the first executive order that I would issue would be to repeal all previous executive orders,” Paul replied, as quoted by Real Clear Politics.
This would be problematic for a number of reasons. Although Republicans would presumably love to do away with President Obama’s executive order protecting some young immigrants from deportation, for example, repealing others would be a tougher sell. Would Paul really want to reverse President Lincoln’s order freeing the slaves, President Truman’s order desegregating the armed forces, or President Kennedy’s order barring discrimination in the federal government?
Well, not when you put it that way.
“Well, I mean, I think those are good points, and it was an offhand comment, so obviously, I don’t want to repeal the Emancipation Proclamation and things like that,” Paul told Real Clear Politics when questioned on the broader impact of his plan. “Technically, you’d have to look and see exactly what that would mean, but the bottom line is it’s a generalized statement that I think too much is done by executive order, particularly under this president. Too much power has gravitated to the executive.”
In reality, President Obama has issued fewer executive orders than any president since Franklin Roosevelt. But still, Paul’s point is clear: He was speaking extemporaneously, and doesn’t actually want to repeal all executive orders.
That excuse would be easier to swallow if Paul hadn’t made the same promise to the Louisville Chamber of Commerce in August:
Asked directly if he would issue executive orders as president, Paul said the only circumstance would be to overturn the ones made by his predecessors.
“Only to undo executive orders. There’s thousands of them that can be undone,” said Paul. “And I would use executive orders to undo executive orders that have encroached on our jurisprudence, our ability to defend ourselves, the right to a trial, all of those I would undo through executive order.”
Paul later backed away from that comment in much the same way, telling reporters that “It wasn’t sort of a response of exactness.”
In fairness to Senator Paul, it seems highly unlikely that he really wants to resegregate the military in an effort to roll back executive overreach. But his clunky attempt to get on both sides of the issue has become a theme for him, which has repeated itself on Medicare, immigration, foreign aid, and a multitude of other topics.
His Democratic rivals have taken notice.
“Rand Paul’s problem isn’t that he changes positions — it’s that he insists that he can simultaneously hold multiple, contradictory positions on a litany of key issues,” Democratic National Committee press secretary Michael Czin said in a statement. “As Paul gears up for a presidential run, he changes positions to suit the moment or to match the views of the group in front of him. From confronting ISIL to ending aid to Israel to whether he supports the Civil Rights Act or the Voting Rights Act, Rand Paul disingenuously tries to have it every way.”
Paul may be able to get away with clunky flip-flopping in the Senate, but it will become a major liability for him if he pursues the presidency in 2016. Clearly, Democrats are ready and eager to attack his lack of consistency. If Paul isn’t careful, they could set the narrative for him long before the first votes are cast.
By: Henry Decker, The National Memo, September 15, 2014
“The True Bounds Of Executive Authority”: The Possession Of Great Power Necessarily Implies Great Responsibility
With Congress mired in gridlock, President Obama has vowed to use “a pen and a phone” to accomplish some of his policy goals. Last week, he doubled down by promising to act on one of the nation’s most divisive and important issues — immigration — before the rapidly approaching end of summer. Such executive action has outraged his political foes. To be sure, any ambitious path of executive action must be conducted in a manner consistent with the law and the appropriate role of coordinate branches. But should we snap to attention when we hear hyperventilating about his supposed abuse of power? At least so far, hardly.
All presidents have significant power to advance policy goals through executive action. That power is limited by the Constitution, above all else. The Supreme Court has made it clear that when Congress has not acted, and no federal law blocks it, the president has considerable leeway to act. Through the years, presidents of both parties have used the tools at hand. Ronald Reagan reined in regulatory agencies. Bill Clinton declared major swaths of land off limits for development, and cracked down on tobacco. George W. Bush made major moves to limit stem cell research. And presidents (including this one) have used, and often abused, executive authority when it comes to national security, often moving in secret.
Where does President Obama stack up in this hall of presidents? In fact, so far, he has not been especially more aggressive than his predecessors. He issued executive orders at a slower pace than any president since Grover Cleveland. Quantity is not quality, but the orders he has issued have not been particularly bold — no seizing steel mills (as Harry Truman did) or sending the National Guard to Little Rock (as Dwight Eisenhower did). One unilateral power clearly given to the president by the Constitution is the pardon power. Here, too, Obama has issued fewer pardons and grants of clemency to prisoners serving unjust sentences than most presidents.
This has not stopped his political opponents from screaming that he is abusing his power. The House of Representatives recently voted to sue him for one act of supposed overreaching: delays in implementing the employer mandate and other parts of the Affordable Care Act. Set aside the weirdness of such a claim (this is the same House that wants to repeal the same law). Once a bill is passed by Congress, the executive branch has the authority to execute it. Realistically, putting complex statutes such as the ACA into place will have bumps in the road. In this case, it turned out that the ACA could not be accomplished as quickly as hoped — in part because several states refused to cooperate. But presidents have delayed implementation of laws in the past without arousing ire. George W. Bush used his executive authority in 2004 to waive penalty fees for seniors who signed up late for Medicare Part D, another contentious health care law.
Will the president’s use of executive power to advance his goals on immigration reform be constitutional? Depends. No president has authority to do a complete immigration overhaul by fiat. And we don’t fully know what is contemplated, which must of course meet the test of legality. But this president, as any president, has ample room for action. He has asked for a set of formal recommendations from Homeland Security Secretary Jeh Johnson, and has looked at expanding the Deferred Action for Childhood Arrivals (DACA) program to allow for deferred deportations, at the discretion of federal prosecutors. It makes perfect sense for the president to use his finite resources in a way that is fiscally responsible and protects the public interest. Indeed, he has already done so on a smaller scale two years ago when he created DACA to ceased deportation of young immigrants who met certain criteria.
The government cannot deport everyone; it simply doesn’t have the capacity. Prioritizing deporting violent criminals is hardly earth-shattering, or Constitution-shattering. Law enforcement and prosecutors exercise discretion all the time in determining which cases to investigate and prosecute. In the real world of an “under-resourced” system, choosing how to allocate the resources that Congress does give him is clearly within the president’s purview.
Our government functions on a system of checks and balances. It’s true that the Constitution grants Congress more powers than the president. But, as William Lamb, 2nd Viscount Melbourne, said during a debate in Parliament in 1817, “the possession of great power necessarily implies great responsibility” (150 years later, Spider-Man agreed). A paralyzed Congress has abdicated its responsibility and spurred the president to act. President Obama is simply is doing what he must do to keep the United States running.
By: Inimai Chettiar, Director, Justice Program, Brennan Center for Justice at NYU Law; The Hufington Post Blog, August 29, 2014
“Obama’s Executive Order Rights A Wrong”: One Of The Most Important Positive Steps For Civil Rights In Last 20 Years
Little noticed in coverage of President Barack Obama’s signing of the Fair Play and Safe Workplaces executive order July 31 was a provision that has been called “one of the most important positive steps for civil rights in the last 20 years.”
The statement comes from Paul Bland of the public interest group Public Justice, quoted by Emily Bazelon of Slate. He’s right; what he’s referring to is a provision of the order that bars employers from forcing workers to bring workplace discrimination, sexual assault or sexual harassment cases only through arbitration. As Bazelon reports, the order applies to firms with federal contracts valued at more than $1 million. But that’s plenty.
The arbitration provision got little public attention after the signing, in part because business lobbyists were so busy carrying on about other aspects of the executive order.
As my colleague Christi Parsons reported, businesses are exercised about a rule requiring prospective federal contractors to disclose labor law violations dating back three years and government agencies to take those violations into account when handing out federal contracts. The idea is to goad employers into settling the violations before they apply for contracts.
Business mouthpieces complain that the provision will create a “blacklist” barring companies with even minor violations from hopping on the government gravy train. Repeat after me: “Tough.”
The arbitration provision, however, addresses what may be an even more important abuse. As a private venue for dispute resolution, arbitration may be an effective way to keep commercial disagreement from clogging court dockets. That’s true chiefly when all the parties come to arbitration with roughly equivalent resources.
When it’s used by employers against employees, or by corporations against aggrieved customers, and when it’s forced down complainants’ throats against their wishes, however, it’s a scourge.
Arbitration provisions have proliferated everywhere, and it’s a safe bet that many, if not most, people forced into arbitration didn’t even know they were subject to the requirement until after their dispute arose – arbitration clauses are buried in the boilerplate you sign when you enroll with a cable company, go to a doctor or hospital, or take a new job. Arbitration typically favors the bigger party — they know their way around the process better, and they can take better advantage of what are often very loose standards of evidence and testimony in arbitration.
The Obama order strikes at the heart of this injustice by allowing complaints about workplace discrimination or abuse to be arbitrated only with the consent of the parties after the disputes arise. Surprise arbitration clauses, in other words, are out.
It’s hard not to see the order as a reproach to the Supreme Court and other courts. Judges are big fans of arbitration, in part because it keeps tedious commercial disputes out of their hair. The key case upholding arbitration clauses involved AT&T and a customer dispute over the real cost of “free” cellphones sold by the mobile carrier.
A California federal judge and the 9th Circuit Court of Appeals rejected AT&T’s demand to compel arbitration. But the Supreme Court sided with the company in a 5-4 ruling (naturally).
This was a reflection of what legal scholar David Cole recently called the court’s “unremittingly conservative” narrowing of access to the judiciary to remedy legal wrongs. The Earl Warren Court, he observed in the New York Review of Books, “viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process.”
The Roberts Court has put its thumb on the other side of the scale.
The Obama order shifts the balance just a little bit back the other way.
By: Michael Hiltzik, Columnist for The Los Angeles Times; The National Memo, August 14, 2014
“The Bigoted Republican Two-Step”: The GOP’s Ridiculous Executive-Authority Hypocrisy
Speaker of the House John Boehner wants to sue President Obama. Former Republican vice-presidential candidate Sarah Palin wants to impeach President Obama. And Republicans across the board are in a froth over the president’s allegedly aggressive use of executive authority.
And yet, there are some issues that have so discombobulated Republicans that they are turning their lonely eyes to Obama for answers: Namely, the influx of Central American child migrants on America’s southern border. Faced with the unappealing prospect of using their own congressional power of the purse to solve the problem, Republicans are reacquainting themselves with the allure of executive power.
The current border crisis is the result of Obama following a law signed in 2008 by President George W. Bush and designed to save children from human trafficking. The law created different rules for children hailing from nations contiguous to America — Mexico and Canada — and children from elsewhere. For children coming from the two contiguous nations, Border Patrol agents can use their discretion to quickly send them home to their families. But since repatriation is more logistically complicated for children coming from farther away, the law requires the Department of Health and Human Services to provide housing and care as well as the guidance to seek legal counsel, which generally puts them on a path for a formal judicial review.
Speaker Boehner has now proposed changing that law, saying last week, “I think we all agree that the non-contiguous countries, that now we’re required to hold those people, I think clearly, we would probably want the language similar to what we have with Mexico.” But to apply the language we have with Mexico to Central American child migrants, you’d have to empower Obama’s Border Patrol agents — and effectively, Obama — to decide if those children must go back.
While Boehner wants to pass new legislation expanding Obama’s executive power, other Republicans just want Obama to assert his Oval Office authority without action by Congress. On Fox News Sunday, Texas Gov. Rick Perry repeatedly shrugged off the stipulations of the 2008 law and suggested Obama solve the problem on his own by deploying the National Guard to block entry at the border. Fox’s Brit Hume incredulously responded, “Are they really going to be deterred by the presence of troops along the border who won’t shoot them and can’t arrest them?”
House Intelligence Committee Chair Mike Rogers said on Meet The Press that Obama “has tools in his toolbox that he can use immediately to stop this,” citing Democratic Sen. Dianne Feinstein’s interpretation of the 2008 law which she co-authored. What Rogers chose not to highlight on national television is that Feinstein says Obama has the power to modify how the law is being implemented by directing the Department of Homeland Security to write new regulations — exactly the type of action that has prompted all the Republican talk of lawsuits and impeachment on other issues.
This may seem like your standard-issue Washington hypocrisy: Shake your fist against presidential power when you don’t like what the president is doing, and then pound your fist to demand presidential action to shift focus away from your reluctance to take any responsibility for governing the country.
But the Republican two-step is about more than hypocrisy. Their sudden renewed attraction to executive power lays bare how empty their excuses are for burying comprehensive immigration reform.
If Republicans really believe Obama is too slippery to trust with any legal directives to “secure the border,” they would be pushing for laws that tie his hands, such as mandatory deportations without judicial review and mandatory increases of National Guard or Border Patrol troops on the border.
They’re not, because deep down Republicans know their talking points about a lawless, trustless president are bunk. And the only thing stopping Republicans from passing comprehensive immigration reform is the fear of losing votes from anti-immigrant bigots. Any other excuse has been rendered inoperative.
By: Bill Scher, The Week, July 16, 2014
“On Leadership”: Does President Obama’s Actions Only Count As Leadership If He’s Taking Steps Republicans Like?
By all appearances, President Obama would welcome the chance to work with lawmakers on a solution to combat the climate crisis. But in 2010, a cap-and-trade bill couldn’t overcome a Republican filibuster in the Senate, and the legislative prospects effectively collapsed after the GOP claimed a House majority in 2011.
There are, however, some steps the president can take on his own, and it appears Obama is increasingly prepared to do just that.
On the heels of the Senate’s passage of a long-awaited farm bill, the Obama administration is to announce on Wednesday the creation of seven regional “climate hubs” aimed at helping farmers and rural communities respond to the risks of climate change, including drought, invasive pests, fires and floods.
White House officials describe the move as one of several executive actions that President Obama will take on climate change without action from Congress.
In substance, the creation of the climate hubs is a limited step, but it is part of a broader campaign by the administration to advance climate policy wherever possible with executive authority. The action is also part of a push to build political support for the administration’s more divisive moves on climate change – in particular, the Environmental Protection Agency’s regulations on coal-fired power plants.
This move follows a more expansive climate policy Obama unveiled last June, relying almost exclusively on executive authority already acknowledged by the Supreme Court.
To be sure, these “climate hubs” are a fairly modest policy, intended to help a limited number of farmers adapt to changing conditions. But in the bigger picture, it’s also evidence of a sixth-year president eager to do something fairly specific with his power: lead.
And the more I think about it, the more common this seems to be.
There are a notable group of pundits who have spent much of Obama’s presidency demanding that he “lead more.” It’s never been entirely clear what, specifically, these pundits expect the president to do, especially in the face of unyielding and reflexive opposition from Congress, but the complaints seemed rooted in misplaced expectations and confusion over institutional limits.
As the argument goes, if only the president were willing to lead – louder, harder, and bigger – he could somehow advance his agenda through sheer force of will, institutional constraints be damned. And if Congress resists, it’s necessarily evidence that Obama is leading poorly – after all, if only he were a more leading leader, Congress would, you know, follow his lead. The line of criticism became so tiresome and so common that Greg Sargent began mocking it with a convenient label: the Green Lantern Theory of Presidential Power.
What’s I’m curious about now, however, is whether those same pundits are willing to concede that in the West Wing, there’s been all kinds of leading going on lately.
When Republicans threatened to hold the debt ceiling hostage last fall, promising to crash the economy on purpose unless Democrats met their demands, Obama drew a line in the sand – there would be no negotiations over the full faith and credit of the United States – and the GOP backed down. In the process, a new precedent was set, thanks to the president’s willingness to lead.
When a bill to impose new Iranian sanctions threatened to sabotage international nuclear diplomacy, Obama stepped up, applied pressure, worked the phones, arranged meetings, and convinced senators to hold off and give the ongoing talks a chance. The president’s leadership turned a bill that appeared ready to pass and stopped it in its tracks.
When congressional Republicans balked at a minimum-wage increase, Obama used the powers available to him to give thousands of government contractors a raise. The GOP remains outraged, but the president showed leadership and ignored the complaints. Obama now appears ready to take similar executive action on addressing climate change.
So here’s the question for the “lead more” pundits: doesn’t this count as presidential leadership, too? Or do Obama’s actions only count as leadership if he’s taking steps Republicans like?
By: Steve Benen, The Maddow Blog, February 5, 2014
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